E 31( 137)

November
2010,Wellington,
Wellington,New
NewZealand
Zealand | | RREEPPOORRTT 113179
February 2016,

MODERNISING NEW ZEALANDS

EXTRADITION AND
MUTUAL ASSISTANCE LAWS

February 2016, Wellington, New Zealand | REPORT 137

MODERNISING NEW ZEALANDS

EXTRADITION AND
MUTUAL ASSISTANCE LAWS

Summary

Summary
WHAT IS WRONG WITH THE CURRENT LAW
1

This Report outlines our recommended approach to extradition and mutual assistance3 as set
out in our Issues Paper. The case for reform remains as we expressed it in the Issues Paper:4
The Extradition Act and [the Mutual Assistance in Criminal Matters Act] are complex and convoluted
statutes that are difficult to follow. Both statutes fail to come to grips with the realities of New Zealands
place within a globalised environment. They fail to provide a framework through which to balance
both New Zealands role within the international community and the values that will always remain
important to New Zealanders in protecting the rights of those accused of crimes overseas or protecting
those here from unwarranted investigation from abroad.

PRINCIPAL PROPOSALS FOR A NEW EXTRADITION ACT

2

Our proposed Extradition Bill is designed to give New Zealand a modern, fit-for-purpose
extradition regime that is sufficiently flexible to survive future challenges, but also sufficiently
robust to ensure that New Zealand values are protected.

An integrated scheme for extradition

3

As we signalled in our Issues Paper, our Bill would provide for an integrated scheme that would
achieve the necessary and appropriate balance between protecting the rights of those for whom
extradition is sought, and providing an efficient mechanism for extradition.

Our Bill would establish a Central Authority that would be responsible for receiving, managing
and executing all extradition requests.5 In our Issues Paper, we suggested that responsibility
for the streamlined backed-warrant (or simplified) process would remain with the New
Zealand Police, but we now recommend that the Central Authority be responsible for both
standard and simplified extraditions.6 Importantly, it would be the Central Authoritys role,
in the first instance, to consider whether to commence an extradition proceeding. This would
involve assessing the likelihood of success. The Central Authority would also be formally
responsible for overseeing the entire extradition process from the time a request arrives until
the moment a person sought is discharged or extradited from New Zealand.

We have recommended that all extradition applications should be heard in one court, the
District Court, with appropriate pathways for appeal and review. We have suggested that, given
the complexity of extradition proceedings, consideration is given to establishing a small pool
of judges who would in fact adjudicate extradition cases. While we have actively considered
whether more serious extraditions should be heard in the High Court, we have rejected that

3 Unless the context otherwise requires, we use the term mutual assistance to refer to the process by which New Zealand provides or requests
assistance to or from another state in the investigation or prosecution of crime under the Mutual Assistance in Criminal Matters Act 1992 or
our Mutual Assistance in Criminal Matters and for Recovery of Criminal Proceeds Bill [Mutual Assistance Bill]. This is often also referred to
as mutual criminal assistance or mutual legal assistance: see William Gilmore (ed) Mutual Assistance in Criminal and Business Regulatory
Matters (Cambridge University Press, Cambridge, 1995) at xii. We acknowledge in other contexts that the broader term mutual assistance
may refer to assistance provided by one state to another generally.
4 Law Commission Extradition and Mutual Assistance in Criminal Matters (NZLC IP37, 2014) [Issues Paper] at [1.7].
5 Extradition Bill, cls 12 and 14.
6 See discussion in Issues Paper, above n 4, at [4.13] and [4.17][4.19].
4 Law Commission Report

option. The seriousness of the crimes for which the extradition is sought is not a predictor of
complexity, or of human rights concerns. Moreover, splitting extraditions would risk diluting
the pool of experience judges will develop. There is an argument that the High Court might
deal with standard extraditions while simplified extraditions might remain in the District Court.
This runs into the same difficulty of impeding the consolidation of judicial expertise; therefore,
if it was felt that standard extradition proceedings should be in the High Court then we would
recommend that it deals with all extradition matters.
Reducing complexity in the way that we treat foreign countries requests
6

Our proposed Bill would resolve much of the complexity in the current Act as to how to give
effect to the treaties New Zealand has either inherited or concluded.7 As we explained in our
Issues Paper, the current Act has made the technical requirements of those treaties the major
focus of much of the extradition litigation that has occurred, causing considerable delay. Our
proposed reforms aim to make it clearer how international obligations might supplement the
extradition procedure in the new Act.

Our proposed Bill contains a simpler approach to categorising countries. Two distinct
procedures would apply, depending on which country makes the extradition request. There
is no evidential inquiry into requests from approved countries (Australia and other close
extradition partners like the United Kingdom) and they may use the simplified procedure in
the Bill.8 All other countries must present a summary of the evidence against the person sought
(the Record of the Case) on which the Court would determine liability for extradition. These
countries must use the standard extradition procedure.9

Australia is in a unique position. Under the Bill some of the requirements in the simplified
extradition procedure do not apply if the requesting country is Australia. There is a less onerous
test for whether an offence is extraditable10 and, unlike for other countries, Australia is not
required to provide certain formal assurances.11 These exemptions reflect the particularly close
relationship New Zealand has with Australia.

Reducing delay
9

In our view, both the interests of law enforcement and the administration of justice require that
extradition processes be as efficient as possible, taking account of the need to protect the rights
of the person sought.

10

Our proposed Bill creates a procedure that we believe will make the extradition process far
more efficient. We recommend a number of innovations designed to improve efficiency. The
Notice of Intention to Proceed, for instance, will clearly identify the basis on which a person
is sought for extradition, and give that person the information needed to defend the case. This
will reduce unnecessary confusion. We have also recommended a number of case management
mechanisms, such as an Issues Conference, at which likely issues can be raised at an early stage.
This means that if a person sought for extradition is going to raise human rights concerns, early
judicial attention can be brought to how those issues will be resolved.

7 New Zealands current extradition treaties are listed in sch 3 of the Extradition Bill.
8 Extradition Bill, pt 2, sub-pt 3.
9 Extradition Bill, pt 2, sub-pt 2.
10 Extradition Bill, cl 7(1)(a).
11 Under cls 23(2)(c) and 24 of the Extradition Bill, all non-approved countries must provide assurances as to speciality, re-extradition, and the
duty of candour and good faith, as part of making an extradition request. Countries must provide similar assurances under cl 123(3) in order to
be approved to use the simplified procedure. Given that Australia is automatically recognised as an approved country by virtue of the definition
in cl 5, there is no statutory requirement for it to provide similar assurances.
Modernising New Zealands Extradition and Mutual Assistance Laws 5

Summary

11

We recommend a single appeal route rather than the current regime, which almost encourages
a multiplicity of separate appeals, judicial reviews and habeas corpus applications. We do not
think it is appropriate to remove habeas corpus or judicial review procedures. We prefer instead
to make the need for such reviews as limited as possible, and provide that where they are
required they should be dealt with at the same time as the appeal process.

The protection of rights

12

We have placed great emphasis in our Bill on protecting the rights of the person sought. The
new Act would provide for real protection of rights where necessary. Perhaps most importantly
from a human rights perspective is the role that we see the new Central Authority performing
in making a judgement as to whether an extradition request ought to proceed, and in formally
taking carriage of the extradition proceeding.

13

Human rights concerns are reflected in two principal ways:

(a) We have comprehensively reviewed our proposed procedures against the protections
within the New Zealand Bill of Rights Act 1990 (NZBORA), including those rights that
apply only to those charged with offences. As we said in the Issues Paper, some of those
rights cannot apply in the same way simply because the extradition process is not, and
should not try to be, a criminal process designed to establish the guilt or innocence of the
person sought.12 However, we have taken the approach that the Bill ought to reflect the
rights in NZBORA that are applicable given the nature of extradition.
(b) We have also given the Court two principle roles in protecting the rights of the respondent:
(i) The Court would be given a meaningful judicial role in evaluating the evidence of
alleged offending in standard extradition proceedings, but one that does not go as far as
requiring a pre-emptive trial of the case in New Zealand. It is an important feature of
the nature of extradition proceedings that the person whose extradition is sought is not
on trial. Evaluating the strength of the evidence in determining the guilt or innocence
of the person is to be left to the trial court in the requesting country.
(ii) The new Act would give the Court the sole responsibility for deciding nearly all of the
grounds for refusing surrender.13 Only a few grounds would be reserved for sole
consideration by the Minister. This would allow the significant matters of the personal
circumstances of the individual sought for extradition, the values of New Zealands
legal system, and the human rights record of the requesting country to be considered
directly and openly by the Court.14

PRINCIPAL PROPOSALS FOR MUTUAL ASSISTANCE

14

In our Issues Paper, we identified the following as key aspects of the Mutual Assistance
in Criminal Matters Act 1992 (MACMA) that needed improvement, strengthening and
simplification.

12 Issues Paper, above n 4, at [1.28][1.29].

13 Extradition Bill, pt 2, sub-pt 1.
14 The grounds on which the Minister must or may refuse extradition are related to the death penalty and to bilateral extradition treaties:
Extradition Bill, cl 21.
6 Law Commission Report

Gateway role
15

MACMA serves as a gateway, allowing a foreign country access to New Zealands domestic
powers and techniques for the investigation and prosecution of crime, and restraint and
forfeiture of property derived from crime.

16

Our Bill is designed to make it clear that the default position is that the Central Authority
can grant any foreign country access to the same law enforcement measures that can be used
domestically, subject to the same domestic constraints. From there, the Bill sets out necessary
additional preconditions and protections, both of a general nature, and of a specific nature in
relation to particular types of request.

17

Although the Bill will facilitate access to criminal assistance in New Zealand, the primary
responsibility for providing that assistance will lie with New Zealand law enforcement
authorities. The primary responsibility for executing a search warrant, for instance, will remain
with the New Zealand Police, who will also be accountable domestically for how that search is
conducted.

Gatekeeper role
18

MACMA also serves as a gatekeeper, ensuring that access to New Zealand tools is provided only
in appropriate circumstances, and that the rights of any individuals affected by the request are
sufficiently protected.

19

Not all requests for assistance will be appropriate, especially when first made. Our proposed
Bill strengthens this gatekeeping role by clarifying the grounds under which assistance should,
or can be, refused. Our Bill makes it clear that New Zealand values will remain central and of
crucial concern to the approval process.

Mutual assistance and New Zealands international obligations

20

As we wrote in our Issues Paper, international treaties are likely to vary the processes by which
New Zealand provides assistance to foreign countries. Our proposed Bill sets out how those
international obligations might vary the processes and procedures around providing assistance.
However, most mutual assistance treaties are explicitly subject to domestic law. Therefore, our
Bill provides the baseline requirements, which must be met but may be supplemented by treaty.

Clarifying the relationship with other forms of mutual assistance

21

We have given in-depth consideration to the relationship between formal mutual assistance
provided under MACMA and our proposed Bill, and other mutual assistance arrangements
between regulatory agencies and their foreign counterparts. These various relationships should
be made clear. Interagency mutual assistance agreements will become more prevalent over the
coming years.

22

Our Bill is clear that such regulatory agency arrangements are not affected by our reforms, to
the extent they do not involve coercive assistance such as the use of a search warrant. If they
do, then they must be specifically authorised by another statute or comply with the proposed
Bill.

23

Furthermore, we remain concerned that agencies entering such agreements should be mindful
of the importance of making sure that New Zealands values are reflected in those agreements,
and so we have suggested an oversight role for the Central Authority.

Modernising New Zealands Extradition and Mutual Assistance Laws 7

Summary

Provision of information held by government departments

24

In our Issues Paper, we were critical of the use of the Official Information Act 1982 by
the New Zealand Central Authority, on behalf of foreign authorities, to satisfy requests for
information held by other New Zealand government departments. We have provided a bespoke
regime in the new Bill to address this issue. The regime is designed to allow such requests
to be granted in the same way that they might be granted if the request came from another
New Zealand government department. In doing so, we have replicated the general structure of
providing assistance under our Bill. The Central Authority will determine whether the request
for assistance should be granted; but in general terms it will be the information-holding agency
that will decide whether the reason for which the information is sought is compatible with
what would otherwise have been its obligations to the individual concerned under the Official
Information Act and the Privacy Act 1993.

8 Law Commission Report